Allahabad High Court
Brijbhan Singh vs Finance Controller / Chief ... on 30 August, 2022
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 10638 of 2020
Petitioner :- Brijbhan Singh
Respondent :- Finance Controller / Chief Account Officer, Lucknow And 5 Others
Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh
Counsel for Respondent :- C.S.C.
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
Present petition has been filed for quashing the impugned orders dated 8.6.2020 & 4.9.2020 passed by the respondent nos.1 & 2 and further payment of entire amount of pension, computation pension and gratuity to the petitioner alongwith interest.
Learned counsel for the petitioner submitted that petitioner was initially appointed on the post of Soldier in Indian Army on 4.8.1979. He next submitted that after completion of 18 years, 6 months & 24 days of service, he retired from the post of Hawaldar on 28.2.1998. After retirement, he was appointed on the post of Constable in U.P. Civil Police on 13.10.1998. In compliance of letter issued by the respondent no.4 on 4.4.2013, respondent no.5 has passed an order dated 1.5.2013 directing the petitioner to deposit the entire amount of gratuity of Rs. 4,63,40/- as the same was received after retirement from the services of Indian Army. Thereafter, petitioner has complied the aforesaid order dated 1.5.2013 and deposited the entire amount of gratuity of Rs. 46340/- in the treasury. After retirement from U.P. Civil Police on 31.1.2020, respondents have released the amount of provident fund, insurance and leave encashment withholding the amount of pension, computation pension and gratuity. Later on, vide order dated 8.6.2020 amount of Rs. 15,65,306/- was detained from the gratuity of petitioner on the ground that excess amount has been paid due to incorrect fixation of pay scale. He further submitted that in light of judgments of Apex Court as well as this Court in the matters of State of Punjab and others Vs. Rafiq Masih: 2015 (4) SCC 334 & Bare Lal Upadhyay vs. State of U.P. & others decided on 14.1.2018 passed in Writ-A No.14196 of 2007, in case of incorrect fixation of pay scale any payment is made, no recovery can be made after retirement. Further, he has taken specific plea in paragraph 8 and 9 of the affidavit filed alongwith writ petition that without issuance of any show cause notice as well as opportunity of hearing, impugned order has been passed, which was not denied by the State in its counter affidavit. Therefore, impugned orders are bad and liable to be quashed.
Learned Standing Counsel vehemently opposed the submission, but could not dispute the facts so argued by the learned counsel for the petitioner as well as legal submission.
I have considered the rival submissions advanced by the learned counsel for the parties and perused the record as well as impugned order. Facts of the case are undisputed. Apex Court in the case of Rafiq Masih (supra) while dealing with such dispute, had framed following guidelines:-
"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
Case of petitioner is squarely covered with the judgment of Rafiq Masih (supra) & Bare Lal Upadhyay (supra) and petitioner was not responsible for fixation of incorrect pay scale and consequently for excess payment.
Therefore, under such facts and circumstances of the case, the impugned orders dated 8.6.2020 and 4.9.2020 are quashed and writ petition is allowed. Respondent no.1 is directed to release the gratuity alongwith interest as provided under the Payment of Gratuity Act, 1972 from due date to the date of actual payment. Further, he is directed to release the pension and computation pension of petitioner at the rate of 8% interest from due date to the date of actual payment.
The aforesaid exercise shall completed within a period of two months from the date of production of certified copy of this order.
Order Date :- 30.8.2022
Junaid
